SCOTUS skeptical of campaign law

The Supreme Court Wednesday morning appeared inclined to seek a new set of rules for judging the types of ads that can air in the weeks before Election Day.

Things got snippy as the court heard arguments on a suit brought by an anti-abortion rights group, Wisconsin Right to Life.

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It alleges the seminal 2002 McCain-Feingold campaign reform law infringed on its free speech by preventing it from airing so-called "issue ads" before the 2004 election.

The court's decision on the case could roll back a major piece of the McCain-Feingold law and pave the way for millions of dollars of hard-hitting ads in the weeks leading up to Election Day 2008.

A majority of the justices seemed to signal they felt the law hampered legitimate lobbying activities by restricting issue ads.

But sparks flew when the justices delved into the specifics of what constitutes a genuine issue ad intended to influence a lawmaker's actions versus an ad that sought to defeat the lawmaker.

"You can't tell which of the two (Wisconsin Right to Life) had in mind," Justice Antonin Scalia scolded Solicitor General Paul Clement, who defended the law on behalf of the Federal Election Commission.

Scalia suggested the group's ads were intended to influence Sen. Russ Feingold (D-Wis.) to back down from his support of a filibuster of President Bush's judicial nominees.

But Clement shot back that Feingold, who was up for reelection in 2004, was not going to change his mind no matter how many ads urged him to do so.

"The best way to get a Wisconsin Senator who opposed the filibuster was to get a new Senator," Clement said, asserting the ads implied Feingold should be defeated.

If the court sides with Wisconsin Right to Life, it could lead to a rule-making battle before the FEC this summer over the line between issue ads and those that support or oppose candidates.

Wisconsin Right to Life is asking the court to allow interest groups to name candidates in issue ads - even if they're funded by corporations or unions - right up through Election Day, as long as they're seeking to influence congressional votes.

Such groups are prevented from airing issue ads within 30 days of a primary election or 60 days of a general election if they're paid for by corporations or unions.

"The public only tunes in to the political dialogue" during election season, Kennedy said.

And Scalia took it a step further, telling Clement it's understandable groups would want to name vulnerable candidates in such issue ads.

"The Senator who is at risk is likely to listen.The Senator who has a safe seat is not," he said.

"This is the first amendment," Scalia said, adding if the government wanted to limit issue ads, it should offer guidance about what types of ads would still be allowed. "It seems to me, you need a clear first amendment line and you're not giving me one," Scalia said.

James Bopp, Jr., the lawyer for Wisconsin Right to Life, did offer such a line.

Issue ads should be allowed - even if they're funded by corporations - right up to Election Day, provided they deal with a current legislative issue and name a public official, but do not explicitly oppose or support that official.

"The test is what the words say," he said.

"No, the test is what do the words mean?" Justice David Souter interjected, asserting people in Wisconsin perceived the ads to be attacks on Feingold, since they already knew about the filibuster.

"No, they didn't," Bopp said.

"You think they're dumb?" Souter snapped.

No, Bopp responded, but he pointed out a recent poll suggested many Americans don't know the name of the vice president.

The case is the first significant federal campaign finance matter to come before the court since the confirmations of Chief Justice John Roberts and Associate Justice Samuel Alito, and both seemed to express skepticism about McCain-Feingold's impact on lobbying activities.

The Supreme Court in 2003 - pre-Roberts/Alito - upheld the constitutionality of the piece of McCain-Feingold challenged Wednesday, but it left the door open to challenges based on specific situations.